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28, 1876, on a settlement with Crawford, Foster gave his two individual
notes for the three company notes and interest, payable one day after
date, with interest at 10 per centum per annum,—the one for $8,605, and
t the other for $5,325, or $13,930 in the aggregate; and on September 12,
1878, Foster gave Crawford another note for $3,000, payable one year
after date, with like interest, for money then loaned him. On the first
of these notes there is indorsed a payment of $1,7 21 of interest, dated
April 27, 1878, and on the second a like payment at the same date of
$1,065. On the third note there is an indorsement of $350, dated June
19, 1882, which was afterwards canceled. No other payments appear
` to have been made on either of these notes priorto February 6, 1884,
when it is claimed they were returned to Foster in part payment of this
property. The notes are produced, and I think there is no doubt that
they are genuine. There appears to have been a suthcient reason for
their making. The old notes were partnership ones that James H. Fos-
_ ter had promised his brother to take up, which he did by giving his own
in their place. ’
The contention of the plaintiff is that, admitting their genuineness,
they were paid some time, but he cannot say when, before the transfer
of the property, when they were fraudulently revived for the purpose of
being made a part of the consideration of such transfer.
Both Foster and Crawford swear positively that the notes were due and
unpaid, according to their face,at the time of the transfer, and that they ·
constituted a part of the consideration therefor; and there is no direct
evidence to the contrary. But there are some circumstances in the case
which contradict them with more or less force.
It is very unusual that notes of this amou11t—$16,930—are allowed
by business men to go unpaid and unsecured for a period of 12 years,
and that without the payment of interest for the last two-thirds of that
time. Still, the matter is not so improbable as to prevent belief, when
` supported by the direct evidence of the parties. _
. _ On September 24, 1881, Crawford stated under oath, in writing, to
the assessor of Linn county, that the notes then owned by him, and liable
to taxation in the state, only amounted to $5,500. On June 7, 1883,
he-made an affidavit to procurea decrease of his assessment for 1882, in
which he stated that the gross amount of his "money, notes, and ac-
, counts" subject to taxation was only $13,500.
Crawtord’s explanation of the apparent omission in both these stateQ
ments of these three Foster notes is, there was an agreement between him-
self and Foster that on account of the interest on these notes being 10 per
centum, instead of 12, the maximum allowed by law, the latter would
pay the taxes thereon; that is, he would not deduct the amount from the
value of his property assessed for taxation.
The explanation is open tothe criticism that it is easily made and hard
to contradict. But counsel says, if it is not true, the record of the as-
sessments for the countywill show it, at least negatively; and, as the
plaintiff has not produced this evidence, as it was in his power to do,
the presumption is that it wouldso far corroborate the testimony of the ~